The following papers numbered 1 to 17 were read on this motion by defendant CV BUILDINGS, INC., for an order, pursuant to CPLR 3212, granting summary judgment in favor of said defendant and dismissing the plaintiff's complaint:

Papers

Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 7

Affirmation in Opposition-Memo of Law-Exhibits.........8 - 12

Reply Affirmation.....................................13 - 17

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This is an action for damages for personal injuries sustained by plaintiff, Margaret Iadarola, on February 5, 2007, at approximately 6:00 p.m. when she slipped and fell on ice which is alleged to have formed in a depressed and uneven portion of a public sidewalk adjacent to the commercial premises owned by the defendant, CV BUILDINGS, INC., located at 183-20 Horace Harding Expressway, Fresh Meadows, New York. As a result of the fall, the plaintiff allegedly sustained, inter alia, a calcaneous(heel bone) fracture of her right foot as well as deep vein thrombosis secondary to the subject fracture.

The plaintiff commenced an action for negligence against CV BUILDINGS, INC. ("CV") and TNT REAL ESTATE, the owner of an adjacent property, by filing a summons and verified complaint on April 13, 2009. Issue was joined by the service of defendant's verified answer on or about July 1, 2009. The gravamen of the complaint, as set forth in plaintiff's bill of particulars, is that the defendants were negligent in failing to maintain the sidewalk in a proper and safe condition; in permitting a portion of the sidewalk to be in a depressed and uneven condition; in failing to put sand, salt, ashes, sawdust or other suitable material on the ice that was allowed to accumulate in the depressed portion of the sidewalk; in failing to remove the ice that had accumulated in the depressed portion of the sidewalk; and in not properly and adequately clearing the ice from the depressed portion of the sidewalk.

Pursuant to a stipulation signed by all parties, dated September 13, 2010, and filed with the Queens County Clerk on April 8, 2011, the plaintiff's action against TNT Real Estate Incorporated was discontinued with prejudice.

Plaintiff claims that CV had actual notice of the hazardous condition as CV and/or its employees knew of the existence of the depressed portion of the sidewalk and knew that ice had been permitted to accumulate in it. Plaintiff also claims that the defendant had constructive notice of the hazardous condition in that the condition existed for such a period of time that defendants, in the exercise of due care, should have recognized and remedied it. In addition, plaintiff claims that the defendant violated New York City Administrative Code §§ 7-210; 16-123 and 19-152.

Counsel for defendant, CV, now moves for an order granting summary judgment and dismissing the plaintiff's complaint on the ground that the defendant bears no liability to the plaintiff for negligence due to a dangerous condition in a public sidewalk. Counsel contends that the plaintiff has failed to demonstrate that CV caused or created the dangerous condition complained of, that CV made a special use of the public sidewalk adjacent to the owned premises or that the defendant violated NYC Administrative Code §§ 16-123; 19-152 and 7—120. In addition, defendant's counsel contends that the plaintiff has failed to establish proximate cause as to her alleged injuries.

In support of the motion, defendant's counsel, Terrance J. Ingrao, Esq., submits his own affidavit dated May 19, 2011; a copy of the pleadings; a copy of the plaintiff's verified Bill of [*2]Particulars; a copy of the transcript of the examinations before trial of plaintiff Margaret Iadarola and Mahesh Tunk, the owner of CV; copies of climatological records from the dates in question and medical records from the plaintiff's treating physicians and radiologists.

In her examination before trial, taken on June 24, 2010, plaintiff, Margaret Iadarola, age 59, testified that she is employed as a clerk at the Joint Industry Board for the electrical industry located in Flushing, New York. She stated that she was out of work for six months following the accident due to the injuries she sustained in the fall. She testified that on the evening of the accident she was driving from her home and going to the gym when she parked her vehicle in the vicinity of Deli Masters where she intended to go to purchase her dinner. She stated that it was dark at the time and very cold but it was not raining or snowing. After she parked her car, she walked about 15 - 20 feet in an eastbound direction on the sidewalk adjacent to the Horace Harding Expressway. As she was walking she did not see any ice or snow on the sidewalk and she did not see any mis-level sidewalk flags. However, she stated that as she was walking past the building owned by the defendant, she slipped on a patch of ice. She testified that both of her feet went in the air and she fell backward, hitting the sidewalk with the back of he head, her back, elbow, and heels. After a few seconds, she got up and as she looked on the ground she saw the 2 foot by 3 foot patch of "black ice" that she slipped on. She stated that there was a depressed mis-level flag where the ice collected. She estimated the depression to be one or two inches. She stated that the location where she fell was approximately 10 - 15 feet in front of a Subway sandwich store. After she got up she entered the Subway store and told the person behind the counter that she had just fallen. She then left the Subway store and walked to Deli Masters and ordered a sandwich. She then drove to the gym but told the people there that she could not stay for orientation because she had just fallen. The plaintiff then went home and two days later went to her podiatrist for treatment of an injury to her right ankle and heel. He doctor put her in a hard cast but she developed a blood clot in her calf for which she received treatment at Booth Memorial Hospital for deep vein thrombosis. She also testified that she developed symptoms of plantar fascitis in her left foot because she was putting all her weight on the left side of her body. She stated that she had broken her right ankle in 2006, prior to this accident when she fell off of a step at a gas station.

On February 10, 2011, Mr. Mahesh Tunk, the owner of the building located at 183-20 Horace Harding Expressway was deposed [*3]on behalf of defendant CV Building Inc. He testified that he purchased the property in February 2006. The building consists of three floors. On the ground floor is commercial property which is occupied by a Subway sandwich store. Mr Tunk testified that at the time of the accident he also owned the Subway franchise in the name of CV Subs Inc. However, he sold Subway in 2009. The second and third floors of his building consist of residential apartments. The deed to the property is in the name of CV Building Inc. With respect to snow removal, Tunk testified that the Subway employees would buy their own salt and shovels. He stated that he also purchased snow removal equipment which he kept in the back of Subway. He testified that whenever it snowed, subway employees, Peter and Assad, would take care of the snow and ice removal. The subway employees also were in charge of sweeping the sidewalk in front of the store. He testified that he would go to the building once a week to collect the sales, and oversee the operation. When asked if water would collect or whether ice would form in the area where there was a depression in the sidewalk he answered that it would not. He stated that prior to the accident in February 2007, no one had fallen on the sidewalk and no one had made any complaints about the condition of the sidewalk in front of the property.

In a separate affidavit dated July 19, 2011, which was submitted for the first time in a reply affirmation, Mr. Tunk states that his practice is to visit the property on Thursdays. He states that at no time during his visits to the premises did he ever observe water or ice collecting on the sidewalk in front of the building. He states that plaintiff's accident occurred on a Monday February 5, 2007 and that the last time he would have visited the premises would have been the prior Thursday, February 1, 2007.

The climatological records from LaGuardia Airport indicate that trace precipitation occurred between February 1, 2007 and February 5, 2007. No snowfall or other precipitation occurred during the day of February 5, 2007.

Defendant's counsel submits an affirmation in support of the motion in which he cites Meyer v Guinta, 262 AD2d 463 [2d Dept. 1999]) which states that "an abutting landowner will be liable to a pedestrian injured by a defect in a public sidewalk only when the owner either created the defective condition or caused the defect to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner and expressly makes the owner liable for injuries caused by breach of that duty (also see Romano v. Leger, 72 AD3d 1059 [2d Dept. 2010]). Counsel states that here, the owner of the building [*4]testified that he did not create the condition and, in fact, the condition of the sidewalk was in the same condition when the accident occurred as when he purchased the building. Counsel contends that even where there is a depressed sidewalk flag liability may be imposed only where the abutting property owner has affirmatively created the dangerous condition, negligently made repairs to the area or if liability is imposed by statute (citing Grier v 35-63 Realty, Inc. 70 AD3d 772 [2d Dept. 2010]).

In addition, citing Bi Chan Lin v Po Ying Yam, 62 AD3d 740 [2d Dept. 2009]), counsel states that "an owner of property abutting a public sidewalk is under no duty to pedestrians to remove snow and ice that naturally accumulates on the sidewalk unless a statute or ordinance specifically imposes tort liability for failing to do so." In Lin, supra., the court also stated that "in the absence of such a statute or ordinance, the owner can be held liable only if he or she, or someone on his or her behalf, undertook snow and ice removal efforts which made the naturally-occurring conditions more hazardous" (also see John v City of New York, 77 AD3d 792 [2d Dept. 2010]). Counsel argues that in the instant case there is no evidence in the record which establishes that CV's snow removal efforts made the sidewalk more hazardous. Counsel also argues that the deposition testimony of both plaintiff and Tunk indicate that CV did not create or enjoy a special use of the public sidewalk (citing Santello v City of New York, 222 AD2d 665 [2d Dept. 1995)]

With respect to statutory violations, counsel contends that NYC Administrative Code § 16-123 which requires owners and tenants of building to remove snow or ice within four hours after the snow has ceased, is inapplicable herein as there was no testimony by plaintiff as to the presence of snow and in addition, the climatological records do not indicate that there was any snow that fell during the five days prior to the accident. Further, counsel argues that although § 16-123 requires an abutting landowner to remove snow and ice from abutting public sidewalks, it does not specifically impose tort liability for a breach of that duty (also see Booth v City of New York, 272 AD2d 357 [2d Dept. 2000]; Gohn v Hoffman, 248 AD2d 435 [2d Dept. 1998]).

Plaintiff also contends that the defendant was in violation of Administrative Code § 19-152 which requires an owner of real property to repair or repave substantial defects in sidewalk flags abutting the property whenever the commissioner of the department shall so order. Counsel contends that this section is inapplicable herein as there is no proof in the record that the defendant ever received a direction, summons, notice or citation [*5]from the commissioner or any city agency to repair the sidewalk. Counsel also contends that the section does not provide for the imposition of liability to third parties for the failure to maintain the adjacent public sidewalk.

Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner. This provision specifically states that the owner of real property abutting the sidewalk shall be liable for personal injuries for failure to maintain the sidewalk in a safe condition. Counsel contends that even under this statute the plaintiff must still prove that the defendant either created the condition or had actual or constructive notice of its existence. Counsel contends that in the instant case there is no evidence that CV was aware that ice had accumulated on the sidewalk in front of its property before plaintiff's accident or that ice collected at this location of the sidewalk. With respect to constructive notice, counsel contends that there is no proof in the record as to how long the ice patch existed before plaintiff slipped on it.

Defendant also contends that there is no proof in the record that the medical condition, specifically the right calcaneous fracture, claimed by the plaintiff in her bill of particulars was proximately caused by the accident. In this regard counsel submits the unaffirmed medical records of Dr. John Hickey, the unaffirmed medical report of radiologist Dr. Suzanne Segal, the unaffirmed report of radiologist Dr. John Himelfarb and the unaffirmed report of radiologist Dr. Arthur Fruaff. Counsel contends that the medical records indicate that the plaintiff did not complain of heel pain until February 17, 2007, ten days post-accident. In addition, counsel contends that the radiological reports indicate that the plaintiff did not sustain a fracture, dislocation, tendon or ligament tear of her right foot as the result of the subject accident. Counsel contends that the medical records reveal that the plaintiff was suffering from a pre-existing condition effecting both of her feet.

In opposition to the motion, plaintiff's counsel, Michael S, Levine Esq. contends that the defendant has failed to establish as a matter of law that no issue of fact exists regarding its liability under New York City Administrative Code § 7-210. Counsel contends that the evidence submitted in support of the motion demonstrates that there is a question of fact as to whether CV had actual or constructive notice of the sidewalk defect. Counsel refers to the deposition testimony of building owner Mahesh Tunk who stated that the depression in the sidewalk [*6]caused by the raised flag was present when he purchased the building. He states that constructive notice of the depression which could foreseeably cause pooling is sufficient to sustain a finding of constructive notice of that pooling. Counsel also states that constructive notice of the icy condition may be imputed to defendant by the existence of icy conditions for a period of at least three days prior to the date of the accident. In that regard the plaintiff annexes an affidavit from meteorologist, B. Steven Roberts, dated May 31, 2011, in which he states that on February 2, 2007, three days before the subject accident precipitation in the form of light snow occurred between 4:30-8:20 am. Additional precipitation in the form of rain fell frm 5:15 - 5:25 pm through 10:10 - 11:50 pm. The high temperature on that day was 39 degrees and the low was near 33 degrees. Two days before the accident no precipitation occurred. The high was 31 degrees and the low was 18 degrees. On the date of the accident no precipitation occurred but the temperature range was between 20 degrees and 10 degrees all day. The expert states that based upon the precipitation that fell three days prior to the accident and the fact that temperatures remained below freezing until the day of the accident that "these temperatures were conducive to the formation of ice where the previous precipitation had collected." Counsel states that the expert's affidavit raises a question of fact as to whether the icy condition involved in the accident could have been in existence for at least two days and more likely three days. Further, counsel contends that the defendant failed to present any evidence as to when the sidewalk was last cleaned, inspected or salted prior to the accident

With respect to the issue of proximate cause of the plaintiff's injuries, plaintiff's counsel contends that the defendant has failed to make a prima facie showing because the medical records submitted in support of its contention are not in admissible form. Moreover, counsel has provided a sworn report from plaintiff's treating podiatrist, Dr. Hickey stating that in his opinion the accident of February 5, 2007 was most likely the causal event leading to her heel injury. He stated that the prior ankle injury would not be the cause of the heel fracture. Dr. Hickey did state, however, that the calcaneal stress fracture has healed and the plaintiff does not have any permanent injuries at this time although the injury could lead to arthritis in the future.

Upon review and consideration of the defendant's motion, plaintiff's affirmation in opposition and defendant's reply thereto, this court finds as follows: [*7]

"A property owner is under no duty to pedestrians to remove snow and ice that naturally accumulates upon the sidewalk in front of the premises unless a statute or ordinance specifically imposes tort liability for failing to do so" (D'Ambrosio v City of New York, 55 NY2d 454 [1982]; Crudo v City of New York, 42 AD3d 479 [2d Dept. 2007]; Reynolds v Gendron, 28 AD3d 735[2d Dept. 2006]; Wu Zhou Wu v Korea Shuttle Express Corp., 23 AD3d 376 [2d Dept. 2005]). "In the absence of a statute or ordinance imposing liability, the owner of property abutting a public sidewalk will be held liable only where it, or someone on its behalf, undertook snow and ice removal efforts which made the naturally occurring conditions more hazardous" (Hilpert v Village of Tarrytown, 81 AD3d 781[2d Dept. 2011]; also see Roark v Hunting, 24 NY2d 470 [1969]; Braun v Weissman, 68 AD3d 797 [2d Dept. 2009]; Bruzzo v County of Nassau, 50 AD3d 720 [2d Dept. 2008]; Lopez v City of New York, 290 AD2d 539[2002]).

In the instant case, since the defendant's building contained a commercial space and was not used exclusively for residential purposes, the defendant is not exempt from liability imposed pursuant to section 7-210(b) of the Administrative Code of the City of New York for negligent failure to remove snow and ice from the sidewalk (see John v City of New York, 77 AD3d 792 [2d Dept. 2010]; Braun v Weissman, 68 AD3d 797 [2d Dept. 2009]; Bi Chan Lin v Po Ying Yam, 62 AD3d 740 [2d Dept. 2009]).

However, before imposing liability on a property owner for failing to remedy an icing condition on the sidewalk, the injured plaintiff must demonstrate that the property owner created the dangerous condition which caused the accident or had actual or constructive notice of it (see Harakidas v City of New York, 2011 NY Slip Op 6093 [2d Dept. 2011}; Brown v Outback Steakhouse, 39 AD3d 450 [2d Dept. 2007]; Fahey v Serota, 23 AD3d 335 [2d Dept. 2005]). Thus, in its motion for summary judgment the defendant is required to establish that it did not cause or create the condition or have actual or constructive notice of it (see Lebron v Napa Realty Corp., 65 AD3d 436 [1st Dept. 2009])

Here, there is no evidence in the record that the owner of the building created the condition or had actual notice of it, nor was there any proof that the formation of ice in the depressed area of the sidewalk was a recurrent dangerous condition. However, in order to demonstrate, prima facie that the building owner did not have constructive notice it is incumbent on the owner to submit some evidence such as an affidavit or testimony based on personal knowledge as to when the owner or the owner's employees last inspected the sidewalk or the sidewalk's condition before the accident (see Spector v Cushman & [*8]Wakefield, Inc., 928 NYS2d 9 [1st Dept. 2011]; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598 [2d Dept. 2008]).

Here, the defendant failed to submit any evidence of when Mr. Tunk or his employees last inspected the sidewalk or any evidence of the sidewalk's appearance before the accident (see Mignogna v 7-Eleven, Inc., 76 AD3d 1054 [2d Dept. 2010][defendant failed to make a prima facie case by failing to submit evidence from his employees who were at the premises on the day of the accident and who were responsible for shoveling and salting the area where the plaintiff allegedly fell, stating when the parking lot was last inspected]; Lebron v Napa Realty Corp., 65 AD3d 436 [1st Dept. 2009]; Totten v Cumberland Farms, Inc., 57 AD3d 653 [2d Dept. 2008]; Gerbi v Tri-Mac Enters. of Stony Brook, Inc., 34 AD3d 732 [2d Dept. 2006]). Without such evidence there was no proof to establish that the ice formed so close in time to the accident, that defendant could not reasonably have been expected to notice and remedy the condition (see Rogers v Niagara Falls Bridge Commn., 79 AD3d 1637 [4th Dept. 2010]).

The defendant may not rely on Mr. Tunk's affidavit or the affidavit of its climatological expert which were improperly submitted for the first time in their reply [see De La Cruz v. Lettera Sign & Elec. Co., 77 AD3d 566 [1st Dept. 2010]). In any event, the affidavit of Mr. Tunk has no probative value as it states that the last time the defendant was on the premises was five days before the accident and it also states only what the defendant's practice was rather than stating whether he made an actual inspection close to the time of the accident (see Goodyear v Putnam/Northern Westchester Bd. of Coop. Educ., 86 AD3d 551 [2d Dept. 2011]; Schiano v Mijul, Inc., 79 AD3d 726 [2d Dept. 2010]; Farrell v Waldbaum's, Inc., 73 AD3d 846 [2d Dept. 2010]; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598 [2d Dept. 2008]).

Accordingly, this court finds that the defendant failed to establish, prima facie, that it lacked constructive notice of the icy condition that allegedly caused the plaintiff to slip and fall (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Defendant also failed to demonstrate, prima facie, as a matter of law, that the plaintiff's injuries were not proximately caused by the accident in question. The medical reports submitted in support of the defendant's motion were not affirmed and therefore not in admissible form (see Grasso v Angerami, 79 NY2d 813 [1991]; Ranford v Tim's Tree & Lawn Serv., Inc., 71 AD3d 973 [2d Dept. 2010]; Mora v Riddick, 69 AD3d 591[2d Dept. 2010]). In any event, the affirmed medical report of Dr. Hickey, submitted in opposition to the motion, is sufficient to raise a [*9]question of fact as to whether plaintiff's injuries were proximately caused by the accident of February 7, 2007.

Since the defendants did not meet their prima facie burden, it is not necessary to consider the sufficiency of the plaintiff's opposition papers (see Anastasio v Berry Complex, LLC, 82 AD3d 808 [2d Dept. 2011]; Gerbi v. Tri-Mac Enters. of Stony Brook, Inc., 34 AD3d 732 [2d Dept. 2006]; Tchjevskaia v Chase, 15 AD3d 389 [2d Dept. 2005]).

Accordingly, based upon the foregoing it is hereby,

ORDERED, that the defendant's motion for an order granting summary judgment dismissing plaintiff's complaint is denied.

Dated: October 5, 2011

Long Island City, NY

____________________

ROBERT J. MCDONALD

J.S.C.